holding that requiring a parolee to attend AA or Narcotics Anonymous violates the First Amendment
How later courts described this case
- holding that requiring a parolee to attend AA or Narcotics Anonymous violates the First Amendment
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. PIRTLE,
Petitioner-Appellee,
No. 07-16097
v.
D.C. No.
CALIFORNIA BOARD OF PRISON CV-04-00518-
TERMS; D. L. RUNNELS; ATTORNEY FCD/KJM
GENERAL FOR THE STATE OF
OPINION
CALIFORNIA,
Respondents-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
March 12, 2008—San Francisco, California
Submission Vacated December 3, 2008
Resubmitted May 28, 2010
Filed July 12, 2010
Before: Stephen Reinhardt, John T. Noonan, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Reinhardt
10199
10202 PIRTLE v. BOARD OF PRISON TERMS
COUNSEL
Daniel J. Broderick, Federal Defender, Ann C. McClintock,
Assistant Federal Defender, Sacramento, California, for the
petitioner-appellee.
Edmund G. Brown, Jr., Attorney General for the State of Cali-
fornia, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Senior Assistant Attorney General, Jennifer
A. Neill, Supervising Deputy Attorney General, Sacramento,
California, for the respondents-appellants.
OPINION
REINHARDT, Circuit Judge:
California state prisoner John H. Pirtle was given a parole
date in 1990, but in 1994, the California Board of Prison
Terms rescinded his parole. After that, the Board denied Pirtle
PIRTLE v. BOARD OF PRISON TERMS 10203
parole three other times prior to a denial in 2002.1 Pirtle filed
a petition for a writ of habeas corpus, asserting that the
Board’s 2002 denial of parole violated his constitutional right
to due process. The state courts denied his petition, but the
district court granted the writ. The State appeals. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm.
I.
In 1980, Pirtle was convicted of second-degree murder for
killing his wife. He was sentenced to a term of seventeen
years to life in prison. Ten years later, after a hearing, the
Board determined that Pirtle was “suitable for parole and
would not pose an unreasonable risk of danger to society or
a threat to public safety if released from prison.” The Board
found that Pirtle committed the crime “as a result of signifi-
cant stress in his life,” that he showed remorse, and that he
accepted responsibility for his actions. It also found that Pirtle
had a stable social history prior to his marriage to the victim,
had no juvenile or adult convictions for violent offenses, had
performed well in his prison job assignments, had matured
since his crime, had received positive psychiatric reports, and
had developed realistic plans for his parole. The Board set his
release date for December 30, 1994.
In March 1994, however, the Board rescinded Pirtle’s
parole. It found that the previous panel had not given suffi-
cient weight to the gravity of the original offense, the fact that
he had been carrying a concealed weapon, or his history of
alcohol abuse, crime, and domestic violence. The Board
denied Pirtle’s parole again in 1995, 1996, 1998, and 2002.
Each time, the Board relied on the circumstances of Pirtle’s
crime, his history of criminal conduct, and his failure to attend
1
On July 1, 2005, the California Board of Parole Hearings replaced the
Board of Prison Terms. Cal. Penal Code § 5075(a). The two entities per-
form the same function, and we use the term “Board” to refer to both.
10204 PIRTLE v. BOARD OF PRISON TERMS
a substance abuse program. The Board’s 2002 denial of parole
is the subject of this appeal.
At the 2002 hearing, the Board considered two descriptions
of Pirtle’s crime. The first was from the 1990 Board report
following Pirtle’s first parole hearing, at which he was
deemed suitable for parole. That report was read into the
record at the hearing and was transcribed as follows:
On March the 8th, 1980 at approximately 1:17 a.m.,
the Gridley Police Department was notified of the
shooting at The Moose Lodge. Upon arrival at the
scene, the responding police officers observed the
victim, Diane Pirtle, lying on the floor with a gun-
shot wound to her upper chest area. The victim was
transported to the memorial hospital where she was
pronounced dead at approximately 1:20 a.m. The
prisoner, John Pirtle, arrived at the police department
and informed personnel on duty that he had just shot
his wife at The Moose Lodge. He then produced a
small pistol and placed it on the counter. Pirtle then
was taken into custody, and when informed that the
victim, his wife, had died, responded by stating,
okay. An autopsy performed on the victim revealed
that she had died as a result of a single 25 caliber
bullet entering her upper chest and penetrating her
heart and liver. Witnesses relate that at approxi-
mately 10:30 p.m. on March 7, 1980, the defendant
— the prisoner had entered The Moose Lodge,
approached his wife, slapped her in the face and then
left. At approximately 1:00 a.m. on March 8, 1980,
the prisoner returned to the Moose Lodge, ordered a
drink at the bar and paced around the bar area while
the victim and another man danced to the music.
When the music stopped, the prisoner walked up to
the victim, placed his arms around her and shot her
in the chest. The prisoner then exited the building.
PIRTLE v. BOARD OF PRISON TERMS 10205
(name spelling and reading errors omitted).
Next, the Board read into the record Pirtle’s own account
of the crime that he gave in 1990. It was transcribed as fol-
lows:
The prisoner relates that on the day prior to the kill-
ing, he and his wife discussed their marital problems
and decided to give their marriage one more try. The
following day his wife came to pick him up at the
bar where he was bartending. She told him that she
wanted to stay in town and drink and he could go
home if he wished. The prisoner stated that he left
his wife and proceeded home in order to give money
to his children for dinner. He then returned to town,
had several drinks and went to The Moose Lodge
where he observed his wife with another man. The
prisoner indicated that this upset him to the point
that he slapped his wife before going uptown to con-
tinue drinking. He then went to a nearby town where
he continued to drink before returning to Gridley.
The prisoner stated that on the way back he was
stopped by a police officer who told him to go home,
which he did. After sleeping for an hour, the prisoner
stated he woke up and found his wife was still not
home. He returned to look for her. Not finding her
at several bars, he went to The Moose Lodge where
he found her dancing with another man. He waited
for the music to end before approaching the victim
and asked her if she was ready to go home. The pris-
oner indicated that his wife told him that she was not
going to go home with him, but that she was going
home with Ron, her dancing partner. The prisoner
stated that the next thing he recalled was a loud bang
and seeing his wife fall to the floor. He then found
himself over the gun and became very confused. He
walked out of the bar and drove to the police station.
The prisoner indicated his remorse for the killing of
10206 PIRTLE v. BOARD OF PRISON TERMS
his wife by stating that he cared for her a great deal.
He further indicated that he had no predisposition to
murder her. He states that he had a habit of carrying
a loaded weapon with him most of the time for pro-
tection. He had been drinking prior to this shooting
but does not feel that he was inebriated at the time
of the shooting. The prisoner gave no explanation or
motive for his action other than his wife rebuffing
him for someone else.
In addition to the circumstances of the commitment
offense, the Board considered Pirtle’s prior criminal history.
He had no juvenile arrest record,2 and as an adult he had mis-
demeanor convictions for drunk driving, disturbing the peace,
disorderly conduct, and escape from the county honor farm.
He also had a felony drunk driving conviction.
The Board also discussed Pirtle’s tumultuous marriage to
the victim. Both Pirtle and the victim were alcoholics and
they fought frequently. On at least six occasions, the police
were called to break up drunken fights between the Pirtles.
Finally, the Board questioned Pirtle about his history of
alcohol abuse. Pirtle was asked why he stopped attending
Alcoholics Anonymous (“AA”) meetings in prison. He told
them that attendance at AA meetings was a condition of his
original parole date, but when his date was revoked, he
stopped attending because he does not believe in a higher
power, which is an important aspect of AA. At a 1996 hear-
ing, the Board asked him why he did not attend AA meetings
and he replied, “if you don’t believe in a higher power you
cannot do the 12 steps, and I don’t believe in a higher power.”
The 2002 panel was aware of Pirtle’s reasons for not attend-
ing AA.
2
Although the Board stated that Pirtle had no juvenile arrest record, he
reported to the Board that when he was fourteen years old, he spent seven
days in juvenile hall after being accused of forging a check on his uncle’s
bank account. He was then put on probation. ER 24.
PIRTLE v. BOARD OF PRISON TERMS 10207
At the conclusion of the 2002 hearing, the Board found that
Pirtle was “not suitable for parole and would pose an unrea-
sonable risk of danger to society or a threat to public safety
if released from prison.” It found that his crime was commit-
ted in “an especially cruel and callous manner,” and that it
was “carried out in a dispassionate calculated manner.” Addi-
tionally, the Board found that “[t]he motive for the crime was
inexplicable or very trivial in relationship to the offense.”
The Board also found that Pirtle had an “escalating pattern
of criminal behavior” and that he had “failed to profit from
society’s previous attempts to correct his criminality.” It
noted his unstable social history, including his alcohol abuse
and the allegations that he was abusive toward his wife. The
Board found that he needed to upgrade vocationally, partici-
pate in therapy or a self-help group to learn how to manage
anger and stress, and take part in a substance abuse program.
The Board emphasized its particular concern that Pirtle had
not “made a lifelong commitment to a substance abuse pro-
gram.”
On January 27, 2003, Pirtle filed a petition for a writ of
habeas corpus in the Butte County Superior Court, asserting
that the Board’s denial of parole violated his constitutional
right to due process because the decision was not supported
by any evidence. The state court issued a Waltreus denial of
his petition, which is a summary dismissal issued when a peti-
tioner raises claims in a habeas corpus petition that were
already decided on direct appeal. See In re Waltreus, 397 P.2d
1001, 1005 (Cal. 1965). The Waltreus denial was in error,
because the question whether the Board denied Pirtle parole
in violation of his constitutional right to due process was not
and could not have been decided on direct appeal from his
original conviction. The California appellate courts issued
summary denials of Pirtle’s subsequent appeals.
Pirtle then filed a habeas corpus petition in district court. A
magistrate judge issued a report and recommended that the
10208 PIRTLE v. BOARD OF PRISON TERMS
writ be granted because the Board’s decision was not sup-
ported by any evidence. The district court adopted the magis-
trate judge’s findings and recommendations in full, granted
the writ, and ordered the Board to set a parole date for Pirtle
within 30 days. The State timely appealed.
II.
The parties dispute the proper scope of review in this case.
The State contends that we must apply the deferential stan-
dard set forth in the Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”). Under the relevant portion of AEDPA,
federal courts may not grant a writ of habeas corpus on
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
Pirtle argues that AEDPA’s deferential standard does not
apply to his claim because it was not adjudicated on the mer-
its by a state court. Under the “look through” doctrine, in
order to determine whether the state courts ever reached the
merits of a federal claim, we must “look through” unex-
plained state court decisions, such as summary denials, to the
last reasoned state court decision. Ylst v. Nunnemaker, 501
U.S. 797, 802, 806 (1991); see also Mendez v. Knowles, 556
F.3d 757, 767 (9th Cir. 2009). Here, the only reasoned state
court decision was a Waltreus denial, which has been held by
the Supreme Court to be neither a procedural denial nor a
denial on the merits. Ylst, 501 U.S. at 805-06; see also Hill v.
PIRTLE v. BOARD OF PRISON TERMS 10209
Roe, 321 F.3d 787, 789 (9th Cir. 2003). Because the state
courts did not reach the merits of Pirtle’s federal claim, “there
is no state court decision on this issue to which to accord
[AEDPA] deference.” Pirtle v. Morgan, 313 F.3d 1160, 1167
(9th Cir. 2002). Where, as here, “it is clear that a state court
has not reached the merits of a properly raised issue, we must
review it de novo.” Id.
III.
[1] “California’s parole scheme gives rise to a cognizable
liberty interest in release on parole.” McQuillon v. Duncan,
306 F.3d 895, 902 (9th Cir. 2002). That liberty interest
encompasses the state-created requirement that a parole deci-
sion must be supported by “some evidence” of current dan-
gerousness. Hayward v. Marshall, 603 F.3d 546, 562-63 (9th
Cir. 2010) (en banc); see also Pearson v. Muntz, 606 F.3d
606, 608-09 (9th Cir. 2010).
[2] Our “some evidence” analysis is shaped by the state
regulatory, statutory, and constitutional law that governs
parole suitability determinations in California. See Hayward,
603 F.3d at 561-62. California law requires the Board to grant
an eligible inmate a parole date unless the Board determines
that “consideration of the public safety requires a more
lengthy period of incarceration for this individual.” Cal. Penal
Code § 3041(b). According to the California Supreme Court,
“public safety” is the “overriding statutory concern” of the
state’s parole scheme. In re Dannenberg, 104 P.3d 783, 795
(Cal. 2005); accord In re Lawrence, 190 P.3d 535 (Cal.
2008); In re Shaputis, 190 P.3d 573 (Cal. 2008). The empha-
sis on public safety is also evident in California’s parole regu-
lations, which provide that a prisoner will be found unsuitable
for parole if “in the judgment of the panel the prisoner will
pose an unreasonable risk of danger to society if released
from prison.” Cal. Code Regs., tit. 15, § 2402(a). In short,
“ ‘some evidence’ of future dangerousness is indeed a state
10210 PIRTLE v. BOARD OF PRISON TERMS
sine qua non for denial of parole in California.” Hayward,
603 F.3d at 562.
To assist in determining who may pose an unreasonable
risk of danger, the California parole regulations identify cir-
cumstances that “tend[ ] to indicate unsuitability for release.”
Cal. Code Regs., tit. 15, § 2402(c). These circumstances
include the aggravated nature of the commitment offense, a
previous record of violence, an unstable social history, sadis-
tic sexual offenses, a history of severe mental problems
related to the offense, and serious misconduct in jail. Id. The
regulations also identify circumstances that “tend to show
suitability” for parole, including the lack of a juvenile record,
a stable social history, signs of remorse, significant stress as
a motivation for the crime, lack of criminal history, realistic
plans for the future, and good institutional behavior. Id.
§ 2402(d).
[3] While the regulatory factors are designed to guide the
Board’s decision, the ultimate question of parole suitability
remains whether the inmate poses a threat to public safety.
“There must be ‘some evidence’ of such a threat,” Hayward,
603 F.3d at 562, and not merely evidence that supports one
or more of the Board’s subsidiary findings. In particular, the
Board may not rely solely on the circumstances of a commit-
ment offense, because “[t]he prisoner’s aggravated offense
does not establish current dangerousness ‘unless the record
also establishes that something in the prisoner’s pre- or post-
incarceration history, or his or her current demeanor and men-
tal state’ supports the inference of dangerousness.” Id. (quot-
ing Lawrence, 190 P.3d at 555). Accordingly, under
California’s parole system and the constitutional requirements
of due process, we must determine whether the record con-
tains “some evidence” that Pirtle poses a current threat to pub-
lic safety.
[4] Here, the Board’s stated reasons for denying Pirtle
parole can be divided into three categories: 1) findings about
PIRTLE v. BOARD OF PRISON TERMS 10211
the circumstances of the commitment offense; 2) findings
about Pirtle’s background and history; and 3) findings about
Pirtle’s conduct while incarcerated. The most substantial of
the Board’s findings relate to Pirtle’s crime. First, the Board
found that the offense was carried out in an “especially cruel”
manner and demonstrated “an exceptionally callous disregard
for human suffering.” All of the evidence in the record, how-
ever, actually supports the opposite conclusion. As the district
court correctly determined, Pirtle did not torment or terrorize
his wife on the night of the crime. Although he slapped her
early in the evening, she continued to drink and dance at the
bar, clearly not traumatized by the experience. Moreover, the
record contains no evidence regarding particular suffering as
a result of the gunshot wound. The Board identified no char-
acteristic of the shooting that, on a comparative basis, made
the action “especially cruel” or “exceptionally callous.”
[5] Next, the Board found that the offense was committed
in a “dispassionate calculated manner.” This finding appears
to be based on the Board’s speculation that, after Pirtle’s con-
frontation with his wife earlier in the evening, “he retrieved
a weapon” from his home. Presumably, this suggested to the
Board that Pirtle returned to the bar with the “dispassionate”
and “calculated” intention or at least consideration of killing
his wife. No evidence in the record supports the Board’s con-
jecture. To the contrary, Pirtle testified at the hearing that he
often carried a gun so as to have it available for self-
protection while performing his job as a bartender. At the
1994 parole hearing, the transcript of which the panel
reviewed before the hearing, he testified that on the night of
the murder, he had the gun with him the whole time, includ-
ing during the first confrontation when he slapped his wife at
the bar. According to Pirtle, he decided to return to the bar
only after he woke to find that his wife was not home yet. The
event that triggered the murder was when he asked her if she
was ready to go home and she told him that she was going
home with another man, her dance partner.3 He shot her
3
The State agrees that Pirtle shot his wife only after she told him that
she was going home with another man. Indeed, the State asserts that the
facts of the commitment offense are “undisputed.”
10212 PIRTLE v. BOARD OF PRISON TERMS
immediately following that public humiliation. Nothing in
this account — or anywhere else in the record — suggests
that Pirtle spent time coolly planning the crime in advance.
Thus, no evidence in the record supports the Board’s finding
that the offense was dispassionate and calculated.
[6] The Board also found that the motive for the crime was
inexplicable or very trivial in relationship to the offense.
Nothing in the record supports this characterization either.
Pirtle shot his wife in a highly-charged, emotional moment.
The day after the couple agreed to try to save their failing
marriage, Pirtle watched his intoxicated wife dance with
another man at a bar. When Pirtle tried to take her home, she
refused and instead declared that she was going home with the
other man. This public moment of rejection, betrayal, and
infidelity created a motive that was hardly trivial or inexplica-
ble. To hold otherwise would be to disregard the history of
human nature. No motive is more frequently recorded in liter-
ature and in song than jealousy and betrayal.4 A wife who tells
her husband that she is “going home” with another man pro-
vides that traditional motive, even if the act of infidelity is not
yet consummated, but only clearly contemplated. Accord-
ingly, as with the Board’s other findings with regard to the
crime, no evidence in the record supports the finding that
Pirtle committed the offense for trivial or inexplicable rea-
sons.
4
In some instances the motive has a basis in truth:
Frankie and Johnny were lovers . . . .
She shot her man, ‘cause he done her wrong.
In other instances, however, it does not, such as in Othello’s murder of
Desdemona after being deceived into believing her unfaithful:
Yet I’ll not shed her blood;
Nor scar that whiter skin of hers than snow,
And smooth as monumental alabaster.
Yet she must die, else she’ll betray more men.
Put out the light, and then put out the light . . . .
William Shakespeare, Othello act 5, sc. 2.
PIRTLE v. BOARD OF PRISON TERMS 10213
[7] The Board’s next set of findings had to do with Pirtle’s
background. The Board found that Pirtle had demonstrated an
“escalating pattern of criminal behavior” and “failed to profit
from society’s previous attempts to correct his criminality.”
The district court correctly found that Pirtle’s handful of
minor misdemeanors and one felony drunk driving offense
can hardly be described as an “escalating pattern of criminal
behavior.” Similarly, no evidence supports the Board’s find-
ing that Pirtle failed to profit from society’s previous attempts
to rehabilitate him. First, although the Board stated that Pirtle
“failed previous grants of probation,” the record contains no
evidence of any such failure.5 Moreover, although he served
two brief jail terms for non-violent, alcohol-related offenses
before he committed the murder, this does not serve as evi-
dence that Pirtle “cannot be counted on to avoid criminality,”
as the Board asserted. To hold otherwise would be to create
a per se rule that any inmate who previously spent time in jail
for any crime, no matter how minor, “cannot be counted on
to avoid criminality” and is therefore unsuitable for parole.
Such a rule would actually violate the parole regulations,
which consider a lack of “any significant history of violent
crime” to be an indicator of suitability for parole. Cal. Code
Regs., tit. 15, § 2402(d)(6).
[8] The Board next found that Pirtle had an unstable social
history based principally on alcohol, and additionally on an
“escalating pattern of domestic encounters” in his relationship
with the victim. A tumultuous relationship with a wife who
engaged in multiple extra-marital affairs does not support a
finding of an unstable social history, much less does it pro-
vide “some evidence” that, thirty years later, Pirtle poses a
5
Indeed, there is no evidence that Pirtle was ever put on probation as an
adult. The only evidence in the record with regard to probation of any kind
comes from Pirtle’s own account of an incident that occurred when he was
fourteen years old. According to Pirtle, he was accused of forging a check
on his uncle’s bank account, and as a result he was placed in juvenile hall
for seven days and then put on probation. The record contains no evidence
that he failed to complete juvenile probation successfully.
10214 PIRTLE v. BOARD OF PRISON TERMS
danger to public safety. The transcript of the 2002 parole
hearing makes clear, however, that the Board found Pirtle’s
history of alcoholism to be the most troubling aspect of the
record before it and the principal basis of its conclusion
regarding an unstable social history. Pirtle’s episodic abuse of
alcohol played a significant role in his prior convictions as
well as in the commitment offense. Recognizing the relation-
ship between Pirtle’s prior alcohol abuse and his commitment
offense, the Board has repeatedly advised Pirtle that he should
attend AA meetings. Pirtle regularly attended such meetings
for four years after he was given a parole date in 1990,
because doing so was a condition of that original order, but
he stopped when the parole date was revoked. Pirtle has
explained to the Board that he is an atheist, and as such, he
objects to AA’s religious content and its emphasis on a higher
power.6 He has also explained to the Board that he is willing
to attend a secular substance abuse program, and at his 2002
hearing, he provided the Board with a list of such programs
in the area of Northern California in which he could partici-
pate if he were released. Pirtle had been unable to attend secu-
lar substance abuse programs in prison, however, because
according to his uncontroverted testimony, no such programs
were available.7 His failure to attend a program that is not
6
We note that, although the issue is not before us, it would likely violate
Pirtle’s First Amendment rights to require him to attend AA as a condition
of parole. See Inouye v. Kemna, 504 F.3d 705, 712-715 (9th Cir. 2007)
(holding that requiring a parolee to attend AA or Narcotics Anonymous
violates the First Amendment). The California Department of Corrections
is, of course, free to impose other parole conditions relating to alcohol, the
substance of which we do not presume to consider here.
7
At his 1996 hearing, the Board informed Pirtle that there was a new
secular alternative program to AA at the prison. Two years later, Pirtle tes-
tified that he signed up for that program, but he was subsequently trans-
ferred to a new facility that did not offer the secular program.
At oral argument, the State contended that Pirtle could have attended
self-help programs or engaged in self-study. The record shows that he did
attend two self-help programs — Breaking Barriers and Alternatives to
Violence. Moreover, the record contains no evidence that self-study was
PIRTLE v. BOARD OF PRISON TERMS 10215
available has no probative value, and thus cannot support the
Board’s decision in any way.
[9] Notwithstanding his unwillingness to attend AA
because of his religious beliefs, Pirtle has been consistently
forthright with the Board about his alcohol abuse. He has
repeatedly expressed his commitment to abstain from alcohol,
both to the Board and to prison psychologists. Pirtle’s psycho-
logical assessments report that he has a history of episodic
alcohol abuse, and that it is now in remission. The assess-
ments also state that Pirtle has a great deal of insight about his
problem with alcohol and its role in his crimes, and they note
that he is committed to sobriety.
[10] Pirtle’s attitude about alcohol was demonstrated most
colorfully at one parole hearing in which he stated: “I mean
I wouldn’t stick my hand in a jar of rattlesnakes — drinking
would be paramount to the same thing.” Consistent with the
self-awareness that he has demonstrated and that his psychol-
ogists have observed, Pirtle had not consumed any alcohol
during the twenty-two years of incarceration that preceded his
2002 parole hearing. Because there is no evidence that Pirtle
will be unable or unwilling to manage his alcohol problem
effectively upon release, as he has already done for more than
two decades, we agree with the district court that “the record
does not support the panel’s determination that petitioner’s
abuse of alcohol up to 1980 rendered him dangerous in 2002.”
available to Pirtle as a treatment for substance abuse, or that self-study
was suggested by any of the psychologists who regularly assessed Pirtle
and recommended that he attend secular AA programs upon release. We
can only speculate about the nature of the self-study program to which the
State referred at oral argument, and speculation does not, of course, consti-
tute evidence. What does constitute evidence is Pirtle’s abstention from
alcohol throughout the twenty-two years prior to his parole hearing, as
well as his impeccable disciplinary record in prison, both of which are
highly probative of his attitude towards alcohol and his capacity for self-
discipline.
10216 PIRTLE v. BOARD OF PRISON TERMS
[11] The Board’s remaining two reasons for denying
parole concern Pirtle’s rehabilitation program. First, the
Board found that Pirtle “failed to upgrade vocationally.” It is
true that he had not recently completed any vocational train-
ing programs at the time of the 2002 hearing, but as the dis-
trict court noted, he “maintained steady employment while in
the institution, building an employment record characterized
as ‘exceptional.’ ” Additionally, the record demonstrates that
Pirtle already possessed several job skills, including that of
farm equipment operator, mechanic, and welder, and that he
had an offer of employment upon release doing ranch work
for sixty hours per week.8 In light of his existing vocational
skills and post-release employment offer, there is no logical
connection between Pirtle’s failure to take vocational classes
in prison and the conclusion that he would pose a threat to
public safety upon release. Accordingly, the Board’s finding
that Pirtle failed to upgrade vocationally does not constitute
evidence of current dangerousness.
[12] Finally, the Board found that Pirtle requires additional
therapy or self-help in order to learn how to cope with anger
and stress.9 There is no evidence, however, that as of 2002
Pirtle had a difficult time coping with either anger or stress.
During his twenty-two years of incarceration, he received no
serious disciplinary infractions, which demonstrates that he
knows how to “cope with stress in a non-destructive manner.”
His most recent psychological evaluation notes that “[w]hile
admitting that he feels helpless from time to time, he remains
cooperative with prisoner programming and continues his
impeccable record with no [serious disciplinary violations] at
any time.” Far from suggesting that Pirtle requires additional
therapy in order to become non-dangerous, his psychological
8
We note that the parole regulations list “realistic plans for release” as
a factor that demonstrates suitability for parole. Cal. Code Regs. tit. 15,
§ 2402(d)(8).
9
Oddly enough, in the same paragraph, the Board commended Pirtle for
completing an Alternatives to Violence program and acknowledged that
his psychiatric report was positive.
PIRTLE v. BOARD OF PRISON TERMS 10217
reports are consistently positive. In fact, when the Board first
recommended that Pirtle seek psychotherapy in 1995, he con-
sulted a psychologist who reported that
Mr. Pirtle has not and does not manifest any charac-
teristic of psychiatric concern. Having evaluated him
myself, as well as having observed him at his place
of work for three or more years, I am in accord with
the past unanimity of clinical opinion. To involve
this man in any type of psychotherapy . . . is a need-
less and profligate waste of professional effort more
wisely extended to emotionally unstable prisoners,
or to those who pose a likely danger to society. Mr.
Pirtle is neither unstable [n]or potentially dangerous.
The record contains no evidence that contradicts this profes-
sional assessment, or that otherwise supports the Board’s
finding that Pirtle needs additional programming in order to
learn how to cope with anger and stress.
[13] In sum, there is no evidence in the record to support
the Board’s finding that Pirtle poses a current threat to public
safety. The Board’s stated reasons for the denial of parole
either lacked evidentiary support, had no rational relationship
to Pirtle’s current dangerousness, or both. Accordingly, we
affirm the district court’s decision to grant the writ of habeas
corpus.
IV.
Upon granting the writ, the district court ordered the Board
to set a parole date for Pirtle within thirty days. The State
argues that the district court’s remedy was improper, and that
the appropriate remedy would be to remand the case to the
Board with instructions to hold another hearing. There is no
merit to this argument. Federal courts have the latitude to
resolve a habeas corpus petition “as law and justice require.”
28 U.S.C. § 2243. Ordering the release of a prisoner is well
10218 PIRTLE v. BOARD OF PRISON TERMS
within the range of remedies available to federal habeas
courts. “Habeas lies to enforce the right of personal liberty;
when that right is denied and a person confined, the federal
court has the power to release him.” Fay v. Noia, 372 U.S.
391, 430-31 (1963), overruled on other grounds by Wain-
wright v. Sykes, 433 U.S. 72 (1977). Accordingly, we hold
that the district court’s remedy was proper.10 Moreover, given
the extraordinary passage of time since the district court’s
order, it may wish to order the Board not simply to set the
parole date within thirty days but to set a date for parole that
would ensure Pirtle’s release on parole within thirty days.
V.
[14] For the foregoing reasons, we hold that the Board’s
decision to deny Pirtle parole was not supported by “some
evidence” of current dangerousness and thus violated his right
to due process. We further hold that the district court’s rem-
edy of ordering the Board to set a parole date within thirty
days was proper. We therefore affirm the decision of the dis-
trict court.
AFFIRMED.
10
By the same token, the Governor’s power to review parole decisions
under California Penal Code § 3041.1 does not compel a delay in setting
Pirtle’s release date. Because the scope of the Governor’s review is limited
to the materials presented to the Board, our finding that the Board’s deci-
sion was not supported by “some evidence” would render “a remand to the
Governor in this case . . . an idle act.” In re Smith, 109 Cal. App. 4th 489,
507 (2003); see also McQuillion v. Duncan, 342 F.3d 1012, 1015-16 (9th
Cir. 2003).